Johns v. Barnes

78 P. 703, 31 Mont. 426, 1904 Mont. LEXIS 167

• Court: Montana Supreme Court
• Decided: December 8, 1904
• Docket: No. 2,103
• Status: Published

Opinion

MR. CHIEE JUSTICE BRANTLY

delivered the opinion of the court.

The transcript on file in this cause shows that the plaintiff has attempted to appeal from a judgment entered against him in the district court, and also from an order overruling a motion to reject certain findings made by the jury. Respondent has interposed a motion, to dismiss the appeal from the judgment, on the grounds, among others, that the the transcript contains no copy of the judgment, and that no undertaking on this appeal was filed with the clerk of the district court. lie also moves to dismiss the appeal from the order on the ground that it is not appealable. The motion must be sustained.

To support an appeal from a final judgment, it must not only appear that the judgment has been entered (Section 1722, Code of Civil Procedure, as amended by Session Laws 1899, p. 146), but the record must contain a copy of it (Code of Civil Procedure, Section 1736). The record before us contains nothing which purports to be a copy of the judgment. It does not even show that any judgment has been entered. (Lisker v. O’Rourke, 28 Mont. 129, 72 Pac. 416, 755.) It also appears affirmatively from the showing made by respondent that no undertaking in support of this appeal was ever filed with the clerk of the district court. This omission renders the appeal ineffectual. for any purpose. (Section 1724, Code of Civil Procedure.)

Touching the attempted appeal from the order, it is sufficient to say that this order is not among those enumerated in Section 1722 of the Code of Civil Procedure, as amended by the Act of 1899, supra, from wbicb appeals are allowed. Hence it is not appealable. Let tbe appeals be. dismissed.

Dismissed.

Mr. Justice Mílburn and Mr. Justice Holloway concur.